Free Flow

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ransboundary

ater

anagement

the most advanced system, but other examples were

also drawn upon. In order to provide a picture of the

requirements from proponent and affected countries,

a number of hypothetical case studies around actual

projects were undertaken.

However, while the technical agencies could agree

on practical steps in identifying projects which may

require tbEIA, the required process, mechanisms to

address additional costs and so on, the major hurdle

was on a legal and political level. From a legal point of

view the problems were twofold. First, for Thailand and

Viet Nam where the Mekong River Basin covers only

part of their national territory, reconciling the require-

ments of tbEIA in the basin with requirements outside

it and with non-MRC member countries (Malaysia

and Myanmar for Thailand and China for Viet Nam)

would add complexity to the implementation. Second,

national EIA legislation does cover all types of projects,

whereas the MRC-supported tbEIA would focus on

water resources issues. Thus a tbEIA protocol would

cover some types of impacts and not others, such as

air pollution. The terminology used in the protocol

remains a difficult issue and a balance is needed to

specify actions without contradicting national legisla-

tion related to EIA.

What the future holds

As the region develops, the water resources in the basin

will play an important role in the development of the

LMB countries. This will inevitably result in potentially

conflicting demands and requires additional efforts by

the member countries in finding the balance between

national priorities, basin-wide considerations and the

rights of all riparian countries.

MRC provides a practical framework for its member

countries to cooperate in the sustainable development

of the basin’s resources. In some areas cooperation is

easier. Over the past 17 years the framework has devel-

oped into a set of processes and strategies that allows

the countries to discuss technical aspects of the devel-

opment and management of the basin’s resources,

which in turn underpins the political decisions made

in the countries’ socioeconomic development plans.

It is clear that the 1995 Mekong Agreement is

working, although there are high and differing

expectations from different stakeholders. MRC’s past

experiences provide important lessons in how to move

forward and show the difficulties involved in balanc-

ing the national priorities of sovereign countries with

aims to cooperate in the basin’s development. The

coming decade will without doubt further test MRC’s

ability to provide a framework for cooperation in the

increased use of shared resources.

This article is the opinion of the author and does not

necessarily relflect the MRC Member Countries’ view on

the issues discussed. The author would like to acknowl-

edge the input from Ton Lennaerts, BDP and Lieven

Geerinck, NAP.

as the member countries did not reach an agreement, it allowed Lao

to hear the concerns from its neighbours and respond by modifying

the design to reduce the negative impacts. The MRC Secretariat is

facilitating continued information sharing on the project.

A further example of effective cooperation is the case for develop-

ment of a bilateral agreement for the promotion of navigation between

Viet Nam and Cambodia. Although Cambodia is not a landlocked

country, the capital Phnom Penh is situated along the Mekong River,

some distance from the coast. Thus, a lot of the capital’s supplies

of imports have to either be trucked in from the coastal port of

Sihanoukville (320 km from Phnom Penh) or shipped through the

Vietnamese delta of the Mekong upriver to Phnom Penh. The Mekong

Agreement provides for freedom of navigation. However, it is not easy

to turn this general provision into a practical protocol for allowing

maritime vessels from overseas and inland barges between Cambodia

and Viet Nam, through the heavily populated delta in a structured

way which allows for free passage without opening up for ‘free-for-

all’ smuggling, ensures enforceable regulations against accidents and

pollution, and complies with customs and immigration requirements.

In 1998 the governments of Cambodia and Viet Nam worked on

an Agreement on Waterway Transportation for the navigational use

of the Mekong River. However, the draft agreement, prepared by

Viet Nam, was not ratified by Cambodia. There is a clear mandate

to promote navigation in the Mekong Agreement, and the MRC

Navigation Strategy (2003) included a legal component which

was considered important in promoting freedom of navigation and

increasing international trade opportunities for the MRC member

countries’ mutual benefit.

In 2006 the governments of Cambodia and Viet Nam agreed

that MRC would enter the scene as main facilitator to draft a new

navigation agreement and assist in negotiating its contents. This

was successfully done through the establishment of national legal

taskforces in the two countries, which met regularly to work on a

base draft agreement prepared by the MRC Navigation Programme.

Several national and regional consultations and workshops were

held to include the opinion of relevant stakeholders such as customs,

immigration, river police, waterway departments, and the ministries

of environment and commerce.

The Agreement Between the Royal Government of Cambodia and

the Government of the Socialist Republic of Viet Nam on Waterway

Transportation was signed on 17 December 2009, and ratified by

both governments in January 2010. MRC is now supporting its

implementation.

A number of lessons were learned in this process. All agencies

that will be affected by the agreement need to be involved, which

is necessary but costly and time-consuming. For proper imple-

mentation of the agreement, it is not only a requisite to include an

implementation road map, but also to bind its milestones legally in

the agreement. Finally, it is clear that it is better to be patient and

provide the highest quality agreement than to rush into the formula-

tion process, as the negotiations may fail if not prepared well.

Challenges

However, there are also areas where cooperation has proved

more difficult – for example, the development of a tbEIA proto-

col. Beginning in 2001 the member countries began reviewing

the experiences of tbEIA globally, and the secretariat engaged a

number of experts to draft outlines for a tbEIA protocol for the

Mekong. The experience of the Espoo convention was used as